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HCAL 1866/2018
[2020] HKCFI 1285
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1866 of 2018
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Rony Ruhul Amin |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 17 January 2020. I shall proceed to consider his application on paper.
The applicant
3. The applicant is a Bangladeshi national. He came to Hong Kong illegally on 25 April 2015. On 22 May 2015, he was arrested by police and was referred to the Immigration Department the next day. He lodged a non-refoulement claim on 24 May 2015.
4. He claimed that if refouled, he would be harmed or even killed by Babul, Rubel and Shahin (“the enemies”) and/or the Bangladeshi Police.
5. He was a supporter of Awami League (“AL”) and the enemies belonged to the Bangladesh Nationalist Party (“BNP”). The enemies tried to persuade him to leave AL and join BNP. He refused. One afternoon in early 2012, he came across the enemies on the street. They tied him to a tree nearby and assaulted him with wooden sticks. He was injured. He reported to police. Instead of investigating his enemies, the police officer handcuffed him and locked him up. He suspected that the enemies had bribed the police. He was on bail after being detained for 29 days. He was brought to appear before a court. Then, he was put into police custody again. A police officer told him that he should leave the country or he might be killed by his enemies. He was released. On 7 March 2015, he was again detained by some plain-clothed police officers, who suspected that he was involved in a strike. His family bribed the police to set him free. He paid the agent to arrange for him to come to Hong Kong.
The Director’s Decision
6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By Notice of Decision dated 27 February 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed upon his return to Bangladesh [12]; that state protection was available to him [16]; that there was no evidence to show the state played a part in the incidents [18] and that internal relocation was an option open to him [21]. His claim under BOR 2 risk was not established.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 21 June 2018.
9. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence and found:
“26. …His account was extremely vague, despite repeated questioning and was inconsistent with his previous claim on material and central points. Furthermore, the appellant introduced a number of significant, new elements to his claim, which he had never previously mentioned. The appellant could provide no explanation for these difficulties when they were put to him.
27. Because of all these difficulties, when looked at in the round, I have reached the conclusion no credence whatsoever can be attached to any of the appellant’s claims.”
See paragraphs 28-44.
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 7 September 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.
DISCUSSION
13. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
14. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.
15. The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.
CONCLUSION
16. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.
Dated the 24th day of June 2020
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(Mike Mak) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 24/6/2020
Rony Ruhul Amin
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/6/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6544/17/3/199/B784
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2511/16 (formerly RBCZ 11747/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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